Hammond-Cristofaro v Insurance Australia Limited t/as NRMA
[2022] NSWPIC 752
•18 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hammond-Cristofaro v Insurance Australia Limited t/as NRMA [2022] NSWPIC 752 |
| CLAIMANT: | Corey Hammond-Cristofaro |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 18 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant motor cyclist was injured when negotiating a turn and motorcycle slid out; whether the motor accident was caused mostly by the fault of the injured person; whether a claimant in a single vehicle accident cannot be found to be “wholly at fault” or mostly at fault; ABZ v AAI Limited t/as AAMI; Held – claimant’s tyre slid out due to poor state of the road; claimant did not fail to take care for his own safety; claimant not wholly and mostly at fault. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 17 April 2021. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST. 5. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a miscellaneous claims dispute assessment concerning whether the claimant is at fault pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (the Act). The claimant has applied to the Personal Injury Commission for a determination of whether he was wholly at fault for the accident. The dispute is lodged as a miscellaneous claims assessment matter pursuant to Schedule 2(3)(d) and (e) of the Act.
The incident occurred on 17 April 2021 at approximately 12:30pm at Blowering Dam Access Road, Tumut.
Corey Hammond-Cristofaro (the claimant) was riding a Harley Davidson Night Train descending down Blowering Dam Access Road in a northerly direction away from Blowering Dam. The claimant was travelling with three other riders.
The claimant was travelling at 40 kmph. The motorcycle was operating without issue. He was approaching a left-hand bend when the tail of the motorcycle “skipped” and the claimant placed his foot on the brake pedal. As he did so, the tail of the motorcycle started to slide out towards the right and the motorcycle started leaning towards the left-hand side.
The motorcycle hit the bitumen and continued to slide along the road until the motorcycle suddenly flipped and the claimant was thrown from the motorcycle with his right foot caught between the motorcycle and the bitumen. As a result, the claimant sustained significant injuries to his right foot for which he has undergone two operations.
The claimant is self-employed as a business owner and head chef. He has been unable to work since sustaining injuries and is still participating in physiotherapy and rehabilitation.
The claimant made an Application for Personal Injury Benefits on 12 May 2021.
The insurer issued a Liability Notice – Benefits up to 26 weeks on 19 May 2021.
The insurer issued a Liability Notice – Benefits after 26 weeks on 23 August 2021, denying any further liability.
The claimant made a request for internal review, which, by Certificate of Determination dated 9 September 2021 the insurer confirmed its original decision to deny liability on the basis that the claimant was considered to be wholly at fault.
The determination was predicated upon the conclusion that the claimant was wholly responsible for the motor accident on the basis that he failed to properly control the motorcycle and failed to take reasonable care for his safety and adjust to road conditions.
The claimant says that the parties do not dispute the version of events, however, they dispute the issue of liability.
Briefly, the relevant evidence is as follows.
In his Application for Personal Injury Benefits the claimant described the accident as follows:
“Riding from Tumut Dam wall hit a pothole went to brake hit a pothole and the bike slid out”.
The police attended the scene and created a report for the event. That event report describes the accident as follows:
“At about 12.30pm on Saturday, 17 March 2021 a 31-year-old male was riding a motorcycle on West Blowering Road. As he negotiated a slight left hand bend the rear of the motorcycle slid out causing the rider to fall from the cycle and onto the roadway. The rider suffered a foot injury. Ambulance attended. Rider conveyed to hospital.”
In the claimant’s statement he said that he was travelling at about 40 kmph and the bike was operating correctly. He was not having any issues with his bike at all. He says that he recalls a moderate left-hand bend in the road, and he felt the back of the bike ‘skip’ a bit as if it ran over something or hit a hole in the road, but when it did this, he was still negotiating the bend and he placed his foot on the rear brake pedal. As he did this, he felt the rear of the bike starting to slide out, the back slid to the right and as it did, the bike started to lean down to the left. He was still seated in the riding position and when the bike hit the bitumen, his left leg was between the bike and the bitumen, and the bike continued to slide along the road. He believes that it was the surface of the road which caused the bike to slide out. He had not ridden on this particular road before and was not familiar with the area.
One of the claimant’s friends with whom he was riding did not see the accident. The others said that the area was a downhill gradient and the road’s surface was damp in areas as a result of trees shadowing the road. He described the bitumen surface as in average condition. He does not have any recollection of any specific potholes or objects on the road in the area.
In a record of interview with Senior Constable Smallwood of Tumut Police who carried out an investigation into the accident, he said the claimant provided him with the account that he was riding the bike, in a generally northerly direction down West Blowering Road – the Blowering Dam wall access road at about 40 kmph. He negotiated a slight left-hand bend, when he braked, causing the rear of the motorcycle to slide out. The claimant attempted to correct the cycle, but the left foot peg made contact with the road. The cycle then veered violently to the right causing the claimant to fall off the motorcycle injuring his left foot.
Documents Considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
SUBMISSIONS
Claimant’s submissions
The claimant relies upon the following matters going to the condition of the road:
a)The statements collected by the insurer’s investigator indicate the following:
(i) Statement of the claimant dated 7 July 2021 at paragraphs 31 and 32 say, relevantly:
“when I applied the rear brakes at the time of the accident, I applied the rear brakes appropriately and I believe it was the road surface which caused the rear of the bike to slide out. The surface of the road was in average condition, but I do recall it appeared a bit sandy”.
(ii) Statement of another rider dated 7 July 2021 at paragraph 18, reads:
“portions of the road are in good condition and portions are very average. Some areas of the road have a sandy or gravelly surface on top of the bitumen”.
Paragraph 25 reads:
“Corey’s bike had lost traction or steeped out as a result of the loose gravel on the road, the loose gravel appeared to be the result of water crossing the road at some stage and surrounding erosion.”
Paragraph 31 reads:
“It is my opinion that the road conditions were a factor in the accident given the amount of loose gravel on the road surface, and given the weight of the motorcycle, it would have been difficult for Corey to correct any slide out occurring”.
(iii) Statement of a further rider dated 7 July 2021 at paragraph 21, reads:
“The Blowering Dam Access Road is very average condition, it is not very wide and has a lot of potholes, it may have also been damp in areas. It is a bitumen road but there are no line markings”.
The claimant refers to photographs captured by the insurer’s investigator supporting the position of the statements made by the claimant and the two riders above. The claimant comments on these photographs as follows:
a)Photograph 1 – The photograph shows repairs to the road with loose gravel sitting loosely on the bitumen road towards the left-hand side of the photograph.
b)Photograph 2 – The photograph shows repairs to the road on the right-hand side with an indentation (or pothole) on the same side, possibly from weathering or erosion.
c)Photograph 3 – The photograph shows that the road surface was uneven with loose gravel towards the left-hand side.
d)Photographs 4 and 6 – The photographs further illustrate the damage highlighted in Photograph 2 with the benefit of better lighting and a clearer resolution on the photograph.
e)Photograph 7 – The photograph is a close-up of the road surface just before impact which clearly highlights loose gravel and the unevenness of the road.
f)Photograph 8 – The photograph further illustrates the repairs to the road as highlighted in Photograph 8.
He submits that the photographs collected during the investigation support the position that the road condition was poor, there was loose gravel on the surface, and repairs had been poorly completed on the road surface.
He submits that the interview between the insurer’s investigator and Senior Constable Smallwood with respect to the position of liability was such that it was conducted a considerable amount of time after the motor vehicle accident, in the absence of any notes or photographs, and that the police officer was not a witness to the event. The inconsistencies with other factual material collected during the investigation casts sufficient doubt as to the reliability and credibility of the statements made during the interview. The claimant also notes that Senior Constable Smallwood was accompanied by another police officer, Senior Constable Boldger. There is no interview or statement collected from Senior Constable Boldger during the investigation to verify the assertions and allegations made.
As to the assertions that the claimant did not operate the motorcycle in accordance with the Motorcycle Rides Handbook (the Handbook) during the accident, the claimant refers to extracts from the Handbook at pages 32, 35, 36, 47, 51, 55 and 36 and says that the claimant used the brakes appropriately when the motorcycle became unstable due to the road surface and condition. He was careful to monitor his speed as he entered and exited the curve and was appropriately scanning the road and surroundings. He positioned himself wide and to the right-side as he entered the curve and then finished tight. The group was riding in single file with the recommended spacing of 3 seconds. He braked approximately as he used the rear brake, not the front brake, and there were no signs of skidding. The diagram drawn by the claimant in his submissions is consistent with the recommendations and diagram detailed in the Handbook. This diagram is the same diagram that’s completed by the claimant during the investigation. He submits that the relevant extracts from the Handbook and the factual circumstances to which I have referred above indicate that he was operating the motorcycle as recommended in the Handbook.
The claimant makes the following notations with respect to his personal safety:
a)he was wearing a helmet and appropriate clothing;
b)he was not speeding whilst descending the Blowering Dam Access Road;
c)he had not consumed alcohol within 24 hours prior to operating the motorcycle and he had not used illicit substances.
d)he has held a motor vehicle licence since he was 17, and a motorcycle licence since 2016, and a full motorcycle licence for a few years.
e)he was cautious in ensuring that the motorcycle was in good condition prior to operating it and noted that he chose not to ride his usual motorcycle as it had a flat tyre.
He submits that based on the evidence presented during the investigation and the factual circumstances, he is not wholly or mostly liable for the motor vehicle accident, and that s 3.28 does not apply. In the event that he is found to have contributed to his injuries by his own negligence, it is submitted that he does not meet the requirement threshold of 61%. He submits that should I determine a finding of contributory negligence ought to be made, then the appropriate reduction should be calculated in accordance with s 3.38 of the Act.
Insurer’s submissions
The insurer submits that the use of the word “fault” suggests that I should approach the assessment of the claimant’s involvement in the accident by considering the law of torts and in particular, whether he was negligent. However, the phrase “at fault” in the legislation requires consideration of the claimant’s actions in the context of the facts and circumstances of the accident and is blameworthiness or responsibility as to how the accident happened.
It submits that the claimant was a motorcycle rider in a vulnerable position and should have taken care for his own safety. The area being ridden had potential for uneven, unstable, and unpredictable terrain. The claimant failed to negotiate a slight bend on the road resulting in a loss of control of his motorcycle.
It submits that the claimant could have slowed his motorcycle to a speed that would have allowed him to react in case there were defects in the road or if the road past the bend was somehow unsafe for road users.
A reasonable person in the claimant’s position had a primary responsibility to ride in a proper and safe manner. There is no evidence to support the presence of a pothole on the road at the point of which the claimant lost control of his motorcycle. The presence of a pothole on the roadway would have been significant enough for the claimant to have identified to police when he spoke to them of the accident site.
The insurer submits that roadways are not pristine environments and that something being on a road (if that be the case) or the condition of the road is an everyday occurrence. It submits the accident occurred because the claimant lost control of his motorcycle and he failed to appreciate the condition of the road in time to make a manageable manoeuvre.
It submits the claimant departed from the standard of care of a reasonable rider in the circumstances of the subject accident and he should be considered wholly at fault for the accident under s 3.28 of the Act.
REASONS
In ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246 (ABZ) at [34] – [56] I set out in detail my reasoning for construing “fault” as it appears in the context of ss 3.11 and 3.28 as denoting tortious liability. I rely on that reasoning in this instance to conclude that a claimant, involved in a single vehicle accident, as in this case, and as was the case with the claimant in ABZ, cannot be found to be “wholly at fault” or mostly at fault. This is because, in my view, tortious liability under the Act is to be assessed through the legal prism of negligence as it is understood both in the common law and under the Civil Liability Act 2002 (NSW) (CL Act). The driver of a motor vehicle does not owe a duty of care to himself, such that he cannot be in breach of that duty and thereby, be at fault.
Further, as a single vehicle accident, not involving any other person, the subject accident falls to be considered under Part 5 of the Act which provides for a regime of deeming fault where the accident was a no-fault accident.
I note that Part 5 of the MAI Act has been relevantly amended at the time of writing this decision by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 (NSW), assented to on 16 June 2022 to omit the Part’s application to statutory benefits following the decision in AAI Limited v Singh [2019] NSWSC 1300; 90 MVR 1. However, at the time of the motor accident the Part applied to statutory benefits. The common-law principles which emerge from decisions such as Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at 267 and 281, Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139; [1982] HCA 43 at 147, Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19 at [26]-[31] and ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [26]-[27] and [48]-[52] are reflected in s 30 (1) of the Interpretation Act. In particular, s 30 (1)(c) provides that any “right, privilege… acquired, accrued or incurred” is not intended to be affected. These words are to be given a wide construction: Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63 at [96] and Chang v Laidley Shire Council (2007) 234 CLR 1; [2007] HCA 37 at [117] support this reading. Likewise, in my reading of both the MAI Act and the amending Act there is no clear expression of legislative intention that the amendment is to have retroactive effect.
The claimant has by his submissions averred that he was not “at fault”, which I construe as aligning with an averment by him that the motor accident was a no-fault motor accident, such that it falls to the insurer to actually persuade me otherwise: s 5.3 of the Act.
As I have already set out above, I am not satisfied that the claimant can be “at fault” or that the accident could be caused by the claimant’s fault.
If I be wrong in this conclusion and I am required as a matter of law to determine his “fault”, the outcome would be no different. Logically, and as a matter statutory constructional choice, the only alternative assessment that I consider the legislation bespeaks (but which I do not consider applies) is that I undertake is an assessment of the claimant’s departure from the standard of care that he was required to take for his own safety: see e.g. Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 at [85], albeit in another statutory context.
Considering the whole of the evidence and undertaking this assessment, I am not persuaded that the claimant has departed from that standard of care. This conclusion would apply equally on any assessment required under s 5.5 of the Act. My reasons for these conclusions are as follow.
In negotiating the turn, the claimant was applying the brakes and slowing down. He was not driving at a speed I consider to be excessive. Rather, I consider his speed to have been well within the limit appropriate for the conditions in which he was riding.
The claimant was not familiar with the road or its condition. The fact that the rear tyre of his motorcycle slid out is, I infer, having considered all the evidence, caused by the poor state of the road. The motorcyclists accompanying the claimant reported, variously; sand, moisture, and uneven services characterising the condition of the road. To safely control his motorcycle upon encountering such a road surface, the claimant could only apply his brakes, which he did. In so doing, therefore, he did not depart from the requisite standard of care, at all.
Accordingly, I do not consider that the accident was caused by his fault or by his contributory negligence as the concepts maybe alternatively understood when viewed through a prism such as that analysed by Tobias AJA in Axiak at [83] – [87].
Costs and Disbursements
I am satisfied that the Claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,980 inclusive of GST.
Conclusion
For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 17 April 2021.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
o the Act
o Motor Accident Injuries Regulation 2017
o Civil Liability Act 2002 (NSW)
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